GIOVANI GUERRA v. STATE OF FLORIDA, 21-1692

Appellant Giovani Guerra pleaded guilty to four counts of lewd and lascivious molestation (person over 18 on a person under 12).
Guerra filed a pro se motion for jail credit; the trial court denied it on March 8, 2021.
Guerra also filed a post-sentencing rule 3.170(l) motion to withdraw his guilty plea, asserting his trial counsel affirmatively misadvised him that he would be eligible for incentive gain time.
At the evidentiary hearing, counsel did not dispute the misadvice and conceded he was unaware that section 944.275(4)(e) prohibits incentive gain time for Guerra’s offense.
The trial court denied the plea-withdrawal motion, citing Smith v. State (treating gain-time advice as collateral); Guerra timely appealed the May 17, 2021 denial, but his challenge to the March 8 jail-credit order was untimely.
The Fourth District dismissed the appeal as to the March 8 order for lack of timeliness and reversed the May 17 order, holding counsel’s affirmative misadvice entitled Guerra to withdraw his plea and remanding with instructions to permit withdrawal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of appeal of March 8, 2021 denial of jail credit	Guerra sought review of the March 8 order in his brief	State argued the notice of appeal was filed more than 30 days after the March 8 order so appeal is untimely	Dismissed as to the March 8 order for lack of timely notice under Fla. R. App. P. 9.110(b)
Whether affirmative misadvice about gain-time makes plea involuntary and permits withdrawal	Guerra argued plea was involuntary because counsel affirmatively and mistakenly told him he would be eligible for gain time	State/trial court relied on Smith (advice about collateral consequences not required) to deny relief	Reversed: affirmative misadvice can render a plea involuntary; remand to permit withdrawal of plea

Cornett v. State, 922 So. 2d 297 (Fla. 2d DCA 2006) (defendant entitled to withdraw plea entered in reliance on counsel's mistaken gain-time advice)
Leroux v. State, 689 So. 2d 235 (Fla. 1996) (mistaken attorney advice about sentencing can justify plea withdrawal)
Lundgren v. State, 581 So. 2d 206 (Fla. 1st DCA 1991) (withdrawing plea permitted where counsel affirmatively misadvised about gain time)
Hernandez v. State, 204 So. 3d 128 (Fla. 4th DCA 2016) (affirmative misadvice may render plea involuntary)
Smith v. State, 126 So. 3d 397 (Fla. 4th DCA 2013) (distinguishes duty to advise on collateral consequences from affirmative misadvice)
Long v. State, 194 So. 3d 539 (Fla. 4th DCA 2016) (standard of review for denial of motion to withdraw plea is abuse of discretion)
Ketterer v. State, 69 So. 3d 1016 (Fla. 4th DCA 2011) (same)
Jenkins v. State, 268 So. 3d 931 (Fla. 5th DCA 2019) (untimely notice of appeal requires dismissal)